Onkwehshón’a

Bringing the politics back to the people

At Onkwehshón:’a we have a vision to bring back the affairs of Kanehsatakero:non into the hands of the people. The time for governance being reserved to a select few has to end in order for our community and our Nation to move forward united into a more prosperous future.

Onkwehshón’a

Bringing the politics back to the people

At Onkwehshón:’a we have a vision to bring back the affairs of Kanehsatakero:non into the hands of the people. The time for governance being reserved to a select few has to end in order for our community and our Nation to move forward united into a more prosperous future.

Questions to Mohawk Council of Kanehsatake re: Land issues and public meeting.

Shé:kon, sewakwékon! I hope everyone has taken the time to read the summary I prepared regarding the government of Canada’s Specific Land Claims resolution process. If you haven’t, go take a look, it will greatly assist you as you read through this post! We have two posts on our launch week, the first is the summary I posted and the second, which you are reading now is one where I will share my views on the matter as well as direct pertinent questions to Serge Otsi Simon and the council to be answered at the public meeting on July 16 2019. Note that these questions are some of the concerns that I and many have in relation to land issues. They are asked with all due respect to the members of the MCK as they too are Kanehsatakehró:non.

QUESTION 1 : What is the exact portion or parcel of land that is being treated with this specific land claim?

This is an important question and one that I have asked before and not received an answer. It is very important to know this as the true stakeholders to the land because the Specific Claims process, as indicated by INAC, is one through which the government of Canada seeks a FINAL and CONCLUSIVE solution to outstanding claims by First Nations. As stated on their website: First Nations must therefore provide a release and an indemnity to the Canadian government. The First Nations may be required to provide a SURRENDER or take other steps to ensure the claim cannot be re-opened in the future.”  This means that once a settlement is accepted, our claim to a specific area subject to the process is concluded and surrendered. Furthermore, the process is by their definition: “completely voluntary”, which means that as representatives of the people of Kanehsatàke, the MCK is participating in the negotiation process of their (meaning of OUR) own volition. Although one could argue based on the bias and under handed colonial tactics the process is based on that our hand is in fact forced, it would likely never work in our favor to argue this premise within their judicial system. In summary, a settlement will equate to the voluntary surrender of our ancestral lands in exchange for a financial settlement. 

  • Information quoted from INAC can be accessed by all through this LINK.

QUESTION 2: Is the MCK aware of the special clauses related to specific claims which include land? If so, what is their position? and if not, well… Why? (You are sitting at the negotiation table after all.)

The importance of this question is quite straight forward. As mentioned in the summary, there are special provisions related to claims which include land (Land “return” or funds to purchase land). First: “The government takes third party interests into account and as general rule a settlement which will never lead to third parties being dispossessed.”  Understandable, when looking at the situation with a level of empathy a home occupies a very important place in a person’s life. Albeit, from our standpoint, a clear double standard and hypocritical. Second: “Land transfers can only occur on a willing buyer/willing seller basis. We can buy land on the open market using settlement funds or use transferred provincial crown lands.” Buying land that we once freely used, occupied and benefited from but were dispossessed of on the mere fact that we saw and governed things differently? A pill hard to swallow but one must do what needs to be done I guess. Although perhaps finding the “willing buyer” and a fair market price may be easier said than done, especially given the current political climate in the municipality of Oka. Although, this point, may be the least of our worries… Third: “Once land is acquired, it does not automatically become “reserve land”, it must first go through the federal vetting process which has several criteria.” This third point is quite heavy, I feel I could go on and on about it but let’s try to keep it simple. First we settle a claim, “Hooray for us right?” Not so fast it seems, any acquired land is not really ours, we are still under the rule of INAC and they will decide if the new land can be added to the land that THEY reserve of US, how gracious!! In addition, there is a doozie of criteria contained on what I would call, a not all inclusive checklist which appeared on their website. This is what I refer to as the municipal and provincial consultation responsibility. It now becomes our responsibility to negotiate with the provincial and municipal government in order to come to an agreement so that the lands can be added to the land that the federal government reserves for us. Sounds pretty Sovereign doesn’t it… To add insult to injury, the most notable issue for municipalities is the loss of the tax revenue and In general, under these negotiated agreements, First Nations typically pay the same amount that they would if the land was not reserve land. This means that a negotiated agreement could and likely would see Kanehsatàke make payments in lieu of taxes to the municipality of Oka or any other affected municipality. I say likely would because the village of Oka already receives over $900,000 per year in lieu of taxes for our community. (2016 Oka Budget document). What message does this send? The Kanienkeha’ka people of Kanehsatà:ke essentially paying taxes to a local municipality for land that, at the risk of repeating myself, we occupied since time immemorial. The message to me is clear, we are a level of government beneath that of municipalities, they see the land as theirs to govern and we need to pay them for our use of it.

Question 3: As it relates to the funding for the negotiation process, where do we stand? 

The government of Canada indicates that they allow loan amounts not exceeding $427,500 for the duration of the negotiations which is set to a three year time frame. MCK passed an acceptance to negotiate BCR on May 31 2011, 8 years ago. What has been the cost to date? Do we have loans to this effect? What are the repayment requirements and interest costs if any associated to these loans, if any?

Question 4: INAC states that a communication strategy is the responsibility of the First Nation. They also indicate that they encourage First Nations to report to its members regularly in order to keep them informed throughout the process. Why as this council not provided any information to the people as of now and why are we being told that the government is holding you to confidentiality when they publicaly state the opposite?

In the draft protocol of the MCK, it states that the political affairs of Kanehsatakehró:non are based on custom and consensus and that this governance approach remains in effect today. In a radio interview conducted on the french CBC station on July 6 2019, Serge Simon also reiterates that the MCK governs in accordance with custom and tradition. I, for one, have not witnessed governance in accordance to custom and tradition and this, for a long time. A chief and council, carry a title, not the decision making power of the people! They should carry our words, our decisions, the consensus reached by the people! The government tells you to maintain secrecy? Then ask yourself who you represent? During intergovernmental dealings, you represent every single one of us, from the eldest to the youngest, there are no secrets to be kept rather you are our eyes, ears and carrier of our words.

Question 5: What is the MCK’s communication strategy going forward? (In relation to land issues and all other matters of importance.)

The point above reflects the importance of this question. Open respectful dialogue, participation and empowerment of our people in all aspects of decision making is in accordance with custom and tradition. Not unilateral decision making and governance led by a few, that is the way of the settler. Can we begin to work toward meaningful change?

Question 6: When is the next public meeting to be expected as there are many more important issues facing our community?

If we work together, we can achieve much more. Let us start working our way back toward a political system that encourages participation at all levels. Discussion and dialogue that begins in the home, the family unit and flourishes through the community. Taking back control of our affairs can help renew people’s interest and rekindle the flames of our political strength. It is said that the Iroquois people’s power declined when settler meddling caused us to move away from our “one mind” system of consensus vs a simple majority rule. We may not be ready for this level of operation yet but we can surely do better! Let’s keep the ball rolling…

We are participating in a system that still relies and treats us through the lens in which their colonizing ancestors used. A view in which they believe that at the time they “discovered” us, we lived in a savage state of nature, with no structure, no rules, laws or governance. A doctrine of discovery that they used and continue to rely on in order to perpetuate their control over our affairs and territory. There are no illusions of grandeur here, they are not going anywhere and neither are we. However, I believe it is time that we start looking at solutions from within, build ourselves up as a whole. The settler government owes us more than we currently get, I believe we can all agree to this. However, they will never hand us a miracle solution, it is up to us to build the future we want by putting our minds together as we did for the majority of our history. Empowering ourselves so that when we sit at a negotiation table with the Government of Canada, we do so on terms that are acceptable to us. This will not be easy but it is achievable. The other option? We already have one foot in the door to assimilation and extinction… Do we want to take the next step, or turn around? The choice is ours…

I will not be able to attend the public meeting being held on July 16 2019, but I wanted to have some questions answered. I encourage everyone who can to attend, to participate and ask your questions, if you don’t have any questions feel free to ask one of these if they are not answered during the meeting. Stay Informed because knowledge is powerful and our affairs are of the utmost importance. Nia:wen kowa ta:non Onen:ki wahí!

Kanehsatà:ke specific land claim July 2019

Summary of specific land claims process

The Specific land claim resolution process is on a voluntary basis, initiated by the First Nation communities who wish to participate. The Canadian government describes the process as making right on “wrongs” committed in the past against First Nations people. 

There is a minimum standard to meet in order to file for a specific claim which relate to format of submission, historical report and supporting documents required, etc…  I will note that requiring documentation very often places First Nations at a disadvantage given our reliance on oral history. The disadvantage is accentuated by other factors related to colonization.  

All research responsibilities as they relate to proving a claim rest on the First Nation. In order to substantiate a claim, it must be demonstrated on a balance of probabilities that the government of Canada has an outstanding “lawful” obligation to the First Nation. In a civil law claim, the balance of probabilities is the requisite standard of proof. It means that it is more likely than not to have occurred. The fact that the claim is TRUE has to be more probable, over 50%, based on accepted evidence. 

There are varying levels of specific claims. As it conerns Kanehsatake, we would figure as a Category 5 Claim which is worth over 3 million dollars and/or is more complex in nature and/or require the involvement of the provincial government. 

Specific claims involving land 

Given that our claim involves land, it is important to note that there are special circumstances relating to Specific claims which include land. Notably, land transfers can only occur on a willing buyer/willing seller basis. We can buy land on the open market using settlement funds or use transferred provincial crown lands. 

Once the lands are acquired, IF we meet the criteria established by the Canadian government relating to adding to reserve land or creating a new reserve, we can transfer the newly acquired land to reserve land. There are many steps involved in adding land to reserve: 

  • Environmental assessments may be required. 
  • Interests held by third parties must be resolved (leases, permits, rights of way) 
  • Any necessary public access to the land and public utilities must be provided. 
  • First Nations must consult municipal and provincial governments. 

As it relates to Municipal issues, we need to pay close attention to this given our specific situation. Before lands can be given Reserve status Canada REQUIRES First Nations to negotiate with affected municipalities to resolve any issues. Most notable is the loss of the tax revenue by the municipalities and school boards. 

***In General, under these negotiated agreements, First Nations typically pay the same amount that they would if the land was not reserve land.*** This means that a negotiated agreement would see a First Nation make payments in lieu of taxes to the municipality. 

 A sobering fact: ONLY 0.2% of Canada’s land mass has “Reserve Status”. 

 Time frame 

After three years of negotiations, the claim can be referred to the Tribunal for a binding decision or the negotiations can continue. This is at the choice of the First Nation. If a settlement is reached, the process moves on to implementation. If there is no settlement reached, the claim can be resubmitted with NEW EVIDENCE or moved to the tribunal to decide on the validity of the claim and compensation.  

Cost of Negotiations 

There are costs associated to the negotiation process. At the end, these may be added to settlement. A reasonable portion of the costs of negotiation for claim will be determined or up to a maximum of $427,500 over the three yearprocess.  

Amounts determined based on workplans and reflect First Nation’s Participation in negotiations and/or level of activity required to settle claim. 

Here is a breakdown of Annual Amounts as determined by the government of Canada: 

  • Legal $35,000 
  • First Nations related Costs $66,000 (Costs associated to participation in negotiation (Community meetings, travel, honoraria, etc..)) 
  • Professional Costs $35,000 (costs associated to employing specialists or experts. (Financial Advisors for example)) 
  •  Other Costs $6,500 Commities, meetings, communications, studies, land surveys, environment studies. 

 Loans 

  • Should not exceed amounts outlined above ($427500) 
  • Deducted from final settlement

Criteria for compensation 

 The specific claims process sets out criteria related to compensation given in the resolution settlement. 

  • As a general rule a band is compensated for losses incurred and damages suffered. If a breach by the federal government of its lawful obligation is proven, there is compensation based on legal principle. (As would occur in a civil litigation for example.)  
  • There is no compensation for “Special Value to Owner” unless it is established, based on evidence, that the land in question had a special economic value to claimant (Over land above market value). 
  • Where it can be justified, A reasonable portion of the cost of negotiations may be added to compensation (as previously mentioned). 
  • The Criteria is general in nature. Any amount will depend on the extent which claimant establishes a valid claim. The burden is on the claimant. If there is doubt on reserve land, the doubt is reflected in the offer. 
  • If established that certain reserved lands were taken or damaged under legal authority. Compensation would be payment of lands at a value of these at the time taken or damaged. 
  • There is NO compensation for the forcible taking of land. 
  • The government takes third party interests into account and as general rule a settlement which will never lead to third parties being dispossessed. 
  • If established that certain reserved lands were never lawfully surrendered or otherwise taken under legal authority. Compensation may include return of lands or payment of current, unimproved value of lands. The compensation may include an amount for loss of use of lands in question where it can be established that the claimant did in fact suffer the loss.
  • Where compensation is to be used to purchase other lands. Compensation may include reasonable acquisition cost (Not above 10% of appraised value) 
  • Any compensation paid in respect to a claim shall take into account any previous expenditures already paid to claimant in respect to the same claim. 

Finality and Certainty 

The Federal Government requires finality and certainty as a result of claim settlement. A settlement MUST achieve complete and final redress. First Nations must therefore provide a release and an indemnity to the Canadian government. The First Nations may be required to provide a SURRENDER or take other steps to ensure the claim cannot be re-opened in the future.